Jones v. Jones
Decision Date | 28 October 1994 |
Docket Number | No. 13-93-231-CV,13-93-231-CV |
Citation | 890 S.W.2d 471 |
Parties | Mae Vosburg JONES, Appellant, v. Phil B. JONES, Appellee. |
Court | Texas Court of Appeals |
Warren P. McKenney, San Antonio, Allan Potter, Sam Westergren, Corpus Christi, for appellant.
Robert C. Wolter, Frederick J. McCutchon, Wood, Boykin & Wolter, Corpus Christi, for appellee.
Before KENNEDY, GILBERTO HINOJOSA and YANEZ, JJ.
This is an appeal from a divorce decree. By eight points of error, Mrs. Mae Jones complains about a jury's determination characterizing some portions of assets acquired during her marriage to Mr. Phil Jones as his separate property. Additionally, Mrs. Jones complains about the trial court's order that she pay $16,000 to Mr. Jones for attorney fees. We reverse and remand in part and affirm in part.
By points of error three and four, Mrs. Jones complains that no evidence exists, or alternatively insufficient evidence exists, supporting the jury's finding that portions of Treasury Notes purchased during the marriage were Mr. Jones's separate property. She complains that the sole basis of the jury's separate property finding was a report, entered into evidence as Mr. Jones's Exhibit 16. By points one and two, Mrs. Jones contends that this report was improperly entered into evidence.
Initially, we address whether the trial court's admission of Mr. Jones's Exhibit 16 constituted reversible error. Exhibit 16 was a report filed by Mr. Van Beveren, a court appointed auditor. Mrs. Jones argues that the exhibit states the auditor's opinion about a mixed question of law and fact and is not based upon clear and convincing evidence.
The trial court appointed Jerry Van Beveren, a certified public accountant, pursuant to Texas Rule of Civil Procedure 172, to file a report to aid in characterizing the assets and liabilities of the parties as separate or community property. He filed his report approximately one year before trial. No exceptions to the report or to any item in the report were made within thirty days of the filing of the report. Tex.R.Civ.P. 172.
At trial, upon attempting to enter the report into evidence, and after the court excused the jury, Mrs. Jones objected that the report contained legal conclusions based upon erroneous legal concepts. By her objection, Mrs. Jones contended that the report failed to show that the property was separate by clear and convincing evidence. The court overruled her objection and admitted the report.
The admission of evidence is a matter within the trial court's discretion. Tracy v. Annie's Attic, Inc., 840 S.W.2d 527, 531 (Tex.App.--Tyler 1992, writ denied). To obtain reversal of a judgment, based upon error in the admission or exclusion of evidence, an appellant must show that the trial court's ruling was in error and that the error was calculated to cause and probably did cause rendition of an improper judgment. Tex.R.App.P. 81(b)(1); Boothe v. Hausler, 766 S.W.2d 788, 789 (Tex.1989). Ordinarily, we will not find reversible error for an erroneous evidentiary ruling in a case where evidence is admitted that is cumulative and not controlling on a material issue in the case. Gee v. Liberty Mut. Fire Ins. Co., 765 S.W.2d 394, 396 (Tex.1989). An improper admission of evidence does not as a rule constitute reversible error when there is other competent evidence of the fact in question in the record. Id. Once finding error in admitting evidence, we must, when determining whether the admission of evidence was harmful, review the entire record. McCraw v. Maris, 828 S.W.2d 756, 757-58 (Tex.1992). In reviewing the record for harmfulness, we look to see whether the judgment turns on the evidence that should have been excluded. Mancorp., Inc. v. Culpepper, 802 S.W.2d 226, 230 (Tex.1990).
We note that the court-ordered audit report by Van Beveren was not the only evidence showing the characterization of marital property. Kathleen White, a certified public accountant, also testified extensively about the characterization of assets of the marital estate. Exhibits supporting her opinions were admitted as evidence without objections.
We hold that no harmful error if any was committed in admitting exhibit 16 because the report was cumulative of other unobjected to testimony and exhibits at trial. Id. We overrule points one and two.
By points three and four, Mrs. Jones contends that no evidence exists, or, alternatively, that the evidence is factually insufficient to support the jury's finding that $288,007 of Treasury Notes were Mr. Jones's separate property. The court asked the jury to determine the character of a $160,000, a $145,000, and a $90,000 Treasury Note. The jury found that of the $160,000 Note, $150,000 was Mr. Jones's separate property and $10,000 was community property. The jury found that of the $145,000 Note, $138,007 was Mr. Jones's separate property and $6993 was community property. Finally, the jury determined that all of the $90,000 Note was community property. Mrs. Jones contends that the tracing of the $150,000 portion of the $160,000 Note and the $138,007 portion of the $145,000 Note is inadequate to show these portions as Mr. Jones's separate property.
When we review the record following a "no evidence" point we review the evidence in the light most favorable to the jury's findings, considering only the evidence and reasonable inferences that support the findings, and rejecting all evidence and inferences to the contrary. Best v. Ryan Auto Group, Inc., 786 S.W.2d 670, 671 (Tex.1990). When we review the record following an "insufficient evidence" point we consider, weigh, and examine all of the evidence that supports and that is contrary to the jury's determination. Plas-Tex Inc. v. United States Steel Corp., 772 S.W.2d 442, 445 (Tex.1989). Having done so, we will set aside the jury's verdict only if the evidence standing alone is so weak as to be clearly wrong and manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986).
Mrs. Jones asserts that Mr. Jones executed a promissory note during the marriage with MBank Corpus Christi for $300,000, without collateral, for the purchase of the three Treasury Notes at issue. She contends that because there was no collateral and because the terms of the promissory note did not specify that the bank would look only to the separate property of Mr. Jones, that the Treasury Notes, including the $160,000 and $145,000 Notes, purchased with the funds from the promissory note should be characterized as all community property rather than having the large percentages characterized as Mr. Jones's separate property as found by the jury.
Mr. Jones responds that the jury's award is supported by the evidence. Kathleen White testified about the Treasury Notes and their origins. During the marriage, Mr. Jones applied for and was given a $300,000 promissory note for ten days at MBank Corpus Christi. The sole applicant on the note was Mr. Jones. Contrary to Mrs. Jones's contention on appeal, the record reflects that the promissory note was secured by a certificate of deposit.
Property possessed by either spouse during or on dissolution of marriage is presumed to be community property, and the party claiming it as separate has the burden to overcome this presumption by clear and convincing evidence. Welder v. Welder, 794 S.W.2d 420, 424 (Tex.App.--Corpus Christi 1990, no writ) (citing Estate of Hanau v. Hanau, 730 S.W.2d 663, 667 (Tex.1987)); Tex.Fam.Code Ann. § 5.02 (Vernon 1993). To discharge this burden, a spouse must trace and clearly identify the property claimed as separate. If separate property and community property have become so commingled as to defy resegregation and identification, the statutory presumption prevails. Conversely, when the separate property has not been commingled or its identity can be traced, the statutory presumption is dispelled. Id. As long as separate property can be definitely traced and identified, it remains separate property regardless of the fact that it may undergo mutations or changes.
It is well established that debts contracted during marriage are presumed to be on the credit of the community and thus are joint community obligations, unless it is shown that the creditor agreed to look solely to the separate estate of the contracting spouse. Cockerham v. Cockerham, 527 S.W.2d 162, 171 (Tex.1975); Brooks v. Sherry Lane Nat'l Bank, 788 S.W.2d 874, 876 (Tex.App.--Dallas 1990, no writ) (citing Wall v. Wall, 630 S.W.2d 493, 596-97 (Tex.App.--Fort Worth 1982, writ ref'd n.r.e.)). Likewise, property purchased on credit during a marriage is community property unless there exists an express agreement on the part of the lender to look solely to the separate estate of the purchasing spouse for satisfaction of the indebtedness. Glover v. Henry, 749 S.W.2d 502, 503 (Tex.App.--Eastland 1988, no writ).
When establishing whether the debt incurred and the property purchased during marriage was the separate property of one of the spouses, the lender's knowledge of the spouses' intentions is of significant importance. Welder, 794 S.W.2d at 427. The intention of one spouse alone to repay a loan out of separate funds and then hold the property purchased with the proceeds of that loan as separate property has never been controlling. Id. Therefore, the intention of the lender to look solely to the property of one spouse is an evidentiary factor of prime importance in showing by clear and convincing evidence that the spouses intended to hold the property as one spouse's separate property, especially where there is no evidence of such an agreement.
Using separate property to pay off a community debt creates a prima facie right to reimbursement. Graham v. Graham, 836 S.W.2d 308, 309 (Tex.App.--Texarkana 1992, no writ) (citing Penick v. Penick, 783 S.W.2d 194, 196 (Tex.1988)). A reimbursement claim arises...
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